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Marc Elias, a lawyer for Al Franken, said it will be up to Norm Coleman to decide whether to appeal a judicial panel's decision in the U.S. Senate election lawsuit, but said the former Republican senator does not have "much of a case on appeal." Tribune photo by Scott Wente

ST. PAUL -- Norm Coleman took the U.S. Senate election results to court and Al Franken benefited.

Courtroom action in Coleman's election lawsuit ended Tuesday with Franken widening his lead in the unresolved race, now five months overdue, and Coleman's lawyers framing their arguments for a Supreme Court appeal.

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The former Republican senator sued to overturn Franken's 225-vote lead, but Franken gained more votes when 351 previously uncounted absentee ballots were opened and counted in court Tuesday.

That process, observed closely by the judges and a courtroom full of observers, expanded Franken's lead to 312 votes.

The three-judge panel conducting the lawsuit trial has not issued a final ruling in the lawsuit, but Franken attorney Marc Elias said the seven-week trial and Tuesday's ballot-counting process proved a simple fact: "Al Franken got the most votes because more people voted for him."

After the stack of rejected absentee ballots was counted for the first time Tuesday, Coleman attorney Ben Ginsberg focused on his client's likely appeal. Ginsberg said Coleman plans to take the case to the state Supreme Court because unopened absentee ballots remain, and they should be counted. He also said the three-judge panel did not correct problems in the election and in their own trial orders.

"The court is wrong in its decisions thus far," he said.

Results of the latest ballot-counting matter little in the overall election challenge and will not cost Coleman support as he pursues further legal action, Ginsberg said. He declined to say whether Coleman will take the election to the U.S. Supreme Court if he fails to win in the state high court.

Coleman led Franken after the Nov. 4 election and entered a statewide recount of 2.9 million ballots on top. The recount ended with Franken leading by 225 votes, and Coleman filed his election lawsuit.

Coleman's appeal, which must be filed within 10 days of the judges' final decision in the trial, would delay the winner receiving a signed election certificate.

Gov. Tim Pawlenty said law prohibits him from signing an election certificate until any state-level appeals are resolved. The certificate originates in his office, but Secretary of State Mark Ritchie also must sign the certificate.

Obtaining a signed election certificate is a crucial step toward being seated in the Senate.

Lawyers for each campaign said they expect the judges to issue a final written order in the case. The judges -- Kurt Marben of Pennington County, Elizabeth Hayden of Stearns County and Denise Reilly of Hennepin County -- have not ruled on a few other issues raised during the trial.

Coleman's team alleged that some votes were counted twice and that votes from a Franken-friendly Minneapolis precinct should be stricken from the tally because the ballots are missing. Franken's campaign claimed the Democrat lost votes because ballots went missing in a number of precincts.

Those complaints do not include enough votes to change the outcome.

"The final result is no longer in doubt," Elias said.

The Minnesota Judicial Center courtroom filled for the Tuesday proceeding. Reporters, campaign workers, Ritchie and members of the public squeezed into six benches to watch ballots counted.

All of the lawyers and observers had to walk through a metal detector to enter the courtroom, the first time such security was used during the recount proceedings.

With the judges watching, the 351 ballots first were removed from outer envelopes that included voter information. Those envelopes were discarded to maintain voters' privacy. The ballots came from 42 counties, including Democratic strongholds of St. Louis, Hennepin and Ramsey counties.

State officials then removed the ballots from inner envelopes. Seated at a table beneath the judges' bench, state Elections Director Gary Poser reviewed each ballot, scanning it for voter marks, and then announced to whom the vote was awarded.

The final ballot tallied was a vote for Franken. That gave him 198 of the 351 counted in open court. Coleman was awarded 111 votes. Another 42 ballots included votes for other candidates or no Senate votes.

Poser wrote down the results and handed the judges a document with the vote tally.